Business Law Prof Blog

ICYMI: Tweets From the Week (Aug. 31, 2014)

"business is...so in thrall to finance, that capital accumulation is their primary goal, rather than value creation" http://t.co/J9yA0hkJTs

— Stefan Padfield (@ProfPadfield) August 31, 2014

“we now have more business income in non-C-corporate form than we do in C-corporate form.” http://t.co/TwbimVCxcB

— Frank Pasquale (@FrankPasquale) August 30, 2014

"Litigation filed in federal court is associated with a significantly higher takeover premium" http://t.co/SKyT3MXvwW

— Stefan Padfield (@ProfPadfield) August 29, 2014

This is huge: 9th Cir. Court rules FedEx drivers in California are employees, not contractors: http://t.co/0nI4K53cON

— Paul M. Secunda (@psecundaWrkProf) August 28, 2014

"China and India are moving towards mandatory, not voluntary, CSR [corporate social responsibility] regimes" http://t.co/eDTYGdypW8

— Stefan Padfield (@ProfPadfield) August 26, 2014

MBS Settlements – The Money Got Lost in Standing

Adam Levitin at Credit Slips has an interesting breakdown of MBS litigation settlements.  He points out that of the $94.6 billion in settlement funds, only 2% has gone to private investors alleging securities-fraud-type claims.

He concludes:

First, it shows that legislative reforms and court rulings have seriously impeded the effectiveness of securities class action litigation. If ever there were an area ripe for private securities litigation, private-label RMBS is it, yet almost all of the recoveries are from six settlements.  This should be no surprise, but it's rare to see numbers put on the effect.  This is what securities issuers and underwriters have long wanted, and the opposition has mainly been the plaintiffs' bar, but perhaps investors will take note of the effect too. 

Second, the distribution shows how badly non-GSE investors got shafted. Remember, that private-label securitization was over 60% of the market in 2006. Yet investors have recovered only 38% of that which the GSEs/FHFA have recovered, and most of that is from the trustee settlements or proposed settlements (I'm not sure that any have actually closed). Private securities litigation has recovered a mere 4% of what the GSEs/FHFA have recovered. 

The real question is whether investors have learned that they cannot rely on either trustees or the securities laws to protect them from fraud, and if they have, what they plan to do about it. One sensible thing would be simply to invest in other asset classes. The other would be to try and reform the trustee system and/or the securities laws.

I'm sure there are many reasons for the disparity, but I think one major contributor is a series of rulings narrowing the definition of standing in the class action context. 

 

(okay, that was my attempt to jazz up a procedural post)

Anyway, these standing issues are now pending - sort of - before the Supreme Court, as I previously posted.  What's interesting is that these standing rulings have had a dramatic effect on private investors' ability to bring claims, but they aren't usually mentioned in the same breath as other, more obvious, limitations on securities class actions. 

[More under the jump]

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Law Professor Position - California Western School of Law

A California Western faculty member provided me with the announcement below (the emphasis is mine for the benefit of our readers):

CALIFORNIA WESTERN SCHOOL OF LAW in San Diego invites applications for an entry-level, tenure-track faculty position to begin in the fall of 2015.  Our curricular needs are in Family Law, Business Law, and Clinical Teaching.  We are particularly, though not exclusively, interested in candidates who are interested in teaching in our Clinical Internship Program, as well as in one of the above-mentioned subject areas.   Candidates who would contribute to the diversity of our faculty are strongly encouraged to apply.  Interested candidates should email their materials to Professor Scott Ehrlich, Chair of the Faculty Appointments Committee, at [email protected].  California Western is San Diego’s oldest law school.  We are an independent, ABA-approved, not-for-profit law school committed to producing practice-ready lawyers.  California Western is an equal opportunity employer.

Joshua Fershee quoted in Greenwire on the Kinder Morgan deal

BPLB's own Joshua Fershee, Professor of Law with the Center for Energy and Sustainable Development at West Virginia University College of Law, was quoted in a Greenwire story on the Kinder Morgan deal.  You can read an excerpt below

Kinder Morgan deal leaves questions for investors

      Mike Lee, E&E reporter  Published: Thursday, August 28, 2014

Kinder Morgan Inc. may have to do more to convince its investors that its proposed $44 billion merger with its subsidiaries is in their best interest.

The company -- the nation's biggest operator of oil and gas pipelines -- took a series of steps to ensure there were no conflicts of interest during the negotiations, and the subsidiaries negotiated for a higher bid from the parent, Kinder Morgan said in a filing<http://www.sec.gov/Archives/edgar/data/1506307/000104746914007230/a2221196zs-4.htm>intended to persuade investors to vote for the merger.

The question will be: Did the company go far enough? Kinder Morgan faced similar questions when it went private in 2007 and when it bought El Paso Corp. in 2011.

.....

The market's reaction -- prices for all three companies have risen since the deal was announced -- shows that investors are willing to overlook a temporary downside if a company has a long-term plan, said Joshua Fershee, a law professor at West Virginia University.

Kinder Morgan's CEO "knows what he's doing, and he's articulated a plan that says upfront, 'Here's where we're going to take the hit,'" Fershee said.

 

Course Objectives and Syllabi

Rebecca Schuman authored a recent article in Slate entitled Syllabus Tyrannus: The decline and fall of the American university is written in 25-page course syllabi.

In the article Schuman complains that in the last twenty years syllabi have grown from 1-2 page simple documents with only the course location, required books, and assignments to “Ten, 15, even 20 pages of policies, rubrics, and required administrative boilerplate, some so ludicrous (“course-specific expected learning outcomes”) that I myself have never actually read parts of my own syllabi all the way through.”

While I won’t go as far as Professor Paul Horwitz goes in criticizing Schuman’s writing, I do want to push back a bit on her critique of “course-specific expected learning outcomes.” 

I admit that bloated syllabi can be a bit cumbersome, but drafting what we at Belmont call “course objectives” can be a helpful process and can lead to important changes in the course. Believe it or not, each semester I look at my course objectives, evaluate whether they were met, and revise my courses as necessary. My course objectives have reminded me that I shouldn’t drop that undergraduate group presentation assignment, no matter how difficult it gets logistically. My course objectives have also reminded me that I just can’t switch to all multiple-choice exams, even if those tests are incredibly common in undergraduate courses today. (To be fair to those who teach undergraduate courses, they typically have 4-8 assessments in a course as opposed to 1-2 in a law school course). 

Anyway, I think some of Schuman’s comments on syllabi bloat are valid, but this increase in disclosure is seen throughout our society as shown in Ben-Shahar & Schneider’s More than You Wanted to Know. While some of the disclosures may be a waste of time and resources, I found the drafting of course objectives helpful and think it will benefit the students through the more thoughtful structure of my courses (even if the students do not take the time to read the objectives themselves). 

Finally and somewhat related, Professor Jennifer Bard notes (with some helpful links) that the ABA is now requiring law schools to draft learning outcomes. If law schools take this process seriously, I think it could be a useful exercise. If law schools just see it as another drain on resources and complete it mindlessly, then it is unlikely that those law schools or their students will benefit.    

Opening for Clinical Professor in Ethics at Boston University School of Management

Job Description

The Boston University School of Management invites applications for a full-time, non-tenure-track Clinical Professor in Ethics, effective July 1, 2015. We seek to appoint a senior faculty member who possesses an international reputation in business ethics. Applicants are welcome from business academic disciplines including: accounting, organizational behavior, finance, business law, information systems, marketing, strategy and strategic management, and operations management. The position will be housed in a department within the School based upon the successful candidate's discipline.

We anticipate that this position will serve as the inaugural Academic Director for the newly created Harry Susilo Institute for Ethics in a Global Economy (http://www.bu.edu/today/2014/harry-susilo-institute-for-ethics-in-a-global-economy/), as well as serve as advisor to other institutional organizations. 

 

Required Skills

Successful candidates will have an established record of teaching and writing in the area of ethics that may include any business discipline; demonstrated teaching abilities at the graduate level; and a terminal degree in business, management, or related areas.

DO NOT APPLY THROUGH THE BOSTON UNIVERSITY HR WEBSITE.

We are an equal opportunity employer and all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability status, protected veteran status, or any other characteristic protected by law. We are a VEVRAA Federal Contractor.

Application Information

Interested candidates should electronically submit a letter of application and curriculum vita by November 15, 2014 via [email protected]  and addressed to: 

Professor Karen Golden-Biddle, Chair

Globalization Search Committee

Boston University School of Management

595 Commonwealth Avenue

Boston, MA  02215

 

More on "Closely Held" in the Hobby Lobby Regulatory Context

Thanks for your informative post, Anne.  I started drafting this post as a comment to yours, and then I realized it was its own post.   [sigh]

It seems to me that the U.S. Department of HHS and any commentators must grapple with what has been a difficult, fact-based question in determining how to define “closely held” to effectuate the Supreme Court’s intent in as expressed in the Hobby Lobby opinion.  That question?  What "control" means in this context.

The Court said in the Hobby Lobby opinion:  “The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.”  More specifically, the Court notes that the Hahns (owners of shares in Conestoga) “control its board of directors and hold all of its voting shares” and notes that Hobby Lobby and Mardel “remain closely held, and David, Barbara, and their children retain exclusive control of both companies.”  [Emphasis has been added by me in each quote.]

The definition of “control” primarily has been a question of fact in business law, making the task of defining it here somewhat difficult.  Some questions and considerations to grapple with are set forth below the fold.  I am sure that others can come up with more.  I am posting these as a way of getting the collective juices flowing.

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HHS Proposes Definition of Closely Held Entity in Rules for Hobby Lobby Exemption:

As I have pointed out in earlier posts on this blog, the June decision in Hobby Lobby failed to define closely-held business for purposes of the religious exemption.  On August 22nd, the U.S. Department of Health and Human Services (HHS) issued proposed rules, open for comments for 60 days, that include a definition of closely-held under one of two approaches borrowed from state law definitions like with S corporations and from IRS regulations.

In common understanding, a closely held corporation – a term often used interchangeably with a “close” or “closed” corporation – is a corporation the stock of which is owned by a small number of persons and for which no active trading market exists. ....Under the first proposed approach, a qualifying closely held for-profit entity would be an entity where none of the ownership interests in the entity is publicly traded and where the entity has fewer than a specified number of shareholders or owners....

Under a second, alternative approach, a qualifying closely held entity would be a forprofit entity in which the ownership interests are not publicly traded, and in which a specified fraction of the ownership interest is concentrated in a limited and specified number of owners.

HHS invites comments on the proposed definitions, the preferred approach, and the threshold cut offs for ownership concentration or numbers of owners.

Importantly, and answering a question raised in several posts in the on line symposium at The Conglomerate, the proposed rules would require a valid corporate action, taken in accordance with state law, to assert that the owners' religious views form the basis of the entity's objection.   HHS also invites comments "on whether to require documentation of the decision-making process and disclosure of the decision."

-Anne Tucker

 

The March of the Benefit Corporation: Next Up, West Virginia (Cross Post)

West Virginia is the latest jurisdiction to adopt benefit corporations – the text of our legislation can be found here.   As with all benefit corporation legislation, the thrust of West Virginia’s statute is to provide a different standard of conduct for the directors of an otherwise for-profit corporation that holds itself out as being formed, at least in part, for a public benefit.  (Current and pending state legislation for benefit corporations can be found here.)

As WVU Law has two members of the ProfBlog family in its ranks (Prof. Josh Fershee (on the Business Law Prof Blog) and Prof. Elaine Waterhouse Wilson (on the Nonprofit Law Prof Blog)), we combined forces to evaluate benefit corporations from both the nonprofit and the for-profit sides.  For those of you on the Business Prof blog, some of the information to come on the Business Judgment Rule may be old hat; similarly, the tax discussion for those on the Nonprofit Blog will probably not be earth-shaking.  Hopefully, this series will address something you didn’t know from the other side of the discussion!

Part I: The Benefit Corporation: What It’s Not:  Before going into the details of West Virginia’s legislation (which is similar to statutes in other jurisdictions), however, a little background and clarification is in order for those new to the social enterprise world.  A benefit corporation is different than a B Corporation (or B Corp).  B Lab, which states that it is a “501(c)(3) nonprofit” on its website, essentially evaluates business entities in order to brand them as “Certified B Corps.” 

It wants to be the Good Housekeeping seal of approval for social enterprise organizations.  In order to be a Certified B Corp, organizations must pass performance and legal requirements that demonstrate that it meets certain standards regarding “social and environmental performance, accountability, and transparency.” Thus, a business organized as a benefit corporation could seek certification by B Lab as a B Corp, but a business is not automatically a B Corp because it’s a state-sanctioned benefit corporation – nor is it necessary to be a benefit corporation to be certified by B Labs.  

In fact, it’s not even necessary to be a corporation to be one of the 1000+ Certified B Corps by B Lab. As Haskell Murray has explained,

I have told a number of folks at B Lab that "certified B corporation" is an inappropriate name, given that they certify limited liability companies, among other entity types, but they do not seem bothered by that technicality.  I am guessing my fellow blogger Professor Josh Fershee would share my concern. [He was right.]

A benefit corporation is similar to, although different from, the low-profit limited liability company (or L3C), which West Virginia has not yet adopted. (An interesting side note: North Carolina abolished its 2010 L3C law as of January 1, 2014.)  The primary difference, of course, is that a benefit corporation is a corporation and an L3C is a limited liability company.  As both the benefit corporation and the L3C are generally not going to be tax-exempt for federal income tax purposes, the state law distinction makes a pretty big difference to the IRS.  The benefit corporation is presumably going to be taxed as a C Corporation, unless it qualifies and makes the election to be an S Corp (and there’s nothing in the legislation that leads us to believe that it couldn’t qualify as an S Corp as a matter of law).   By contrast, the L3C, by default will be taxed as a partnership, although again we see nothing that would prevent it from checking the box to be treated as a C Corp (and even then making an S election).   The choice of entity determination presumably would be made, in part, based upon the planning needs of the individual equity holders and the potential for venture capital or an IPO in the future (both very for-profit type considerations, by the way).  The benefit corporation and the L3C also approach the issue of social enterprise in a very different way, which raises serious operational issues – but more on that later. 

Finally, let’s be clear – a benefit corporation is not a nonprofit corporation.  A benefit corporation is organized at least, in some part, to profit to its owners.  The “nondistribution constraint” famously identified by Prof. Henry Hansmann (The Role of Nonprofit Enterprise, 89 Yale Law Journal 5 (1980), p. 835, 838 – JSTOR link here) as the hallmark of a nonprofit entity does not apply to the benefit corporation.  Rather, the shareholders of a benefit corporation intend to get something out of the entity other than warm and fuzzy do-gooder feelings – and that something usually involves cash.

In the next installments:

Part II – The Benefit Corporation: What It Is.

Part III – So Why Bother?  Isn’t the Business Judgment Rule Alive and Well?

Part IV – So Why Bother, Redux? Maybe It’s a Tax Thing?

Part V - Random Thoughts and Conclusions

EWW & JPF

Call for Papers - UNEP Research Convening on Design Options for a Sustainable Financial System (abstracts due Aug. 31)

Call for papers cosponsored by the United Nations Environment Programme (http://www.unep.org/) - abstract deadline is Aug. 31 with the event in Dec.  The emphasis is on empirical work with clear policy proposals. 

Exerpts:
"The event is a research symposium that the Canadian-based Centre for International Governance Innovation (CIGI) is co-hosting with the UNEP Inquiry into the Design of a Sustainable Financial System in early December. The Convening is intended to address key pertinent theoretical and empirical questions that support the broader applied, policy research agenda concerning the contours of a sustainable financial system.

....The symposium will be for a limited number of people, primarily those who have submitted papers. We will be in a position to provide some support to attend the symposium, which will take place from 1-3 December 2014 in Waterloo, Ontario."

Download CIGI - Inquiry - Research Convening_call_2014 

Anne Tucker

 

Sex, Lies, and . . . Crowdfunding

This follows on Ann's post yesterday on Gender and Crowdfunding.  Ann, so glad you've joined me and Steve Bradford as securities crowdfunding watchers!  Delighted to have you in that informal, somewhat disgruntled "club."

I have been interested in whether securities crowdfunding will democratize business finance.  (I note here that Steve Bradford's comment to Ann's post raises the broader question of crowdfunding's ability to better engage underrepresented populations in general.)  My interest has, however, been more on the investor (backer) side of the crowdfunding equation than on the business (entrepreneur) side.  

As Ann notes, given the delay in the Securities and Exchange Commission (SEC) rulemaking under Title III of the Jumpstart Our Business Startups (JOBS) Act, the information on gender and crowdfunding that we have so far comes from other types of crowdfunding.  This information may or may not map well to markets in securities crowdfunding.  But it's still worth reviewing the information that we do have.

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An Easy Way for Students to Improve Their Law School Performance: Stop Multitasking

Students often ask me how they can improve their performance in my classes. There’s one thing they can do that will increase their learning with no additional work on their part: stop multitasking.

Multitasking is bad. The research is clear: students, even today’s students who grew up multitasking, learn less when they’re doing other things at the same time. See, for example, here and here. It’s a very simple point: if you surf the Internet, email, text, instant message, talk on the phone, or watch TV while you’re studying (or in the classroom), you learn less. Effective study (and work) requires focus.

It's such an easy, effortless way to improve learning: just focus exclusively on what you’re reading, without any distractions. Turn off instant messaging. Close the web browser and the email program. Silence your phone. Turn off the TV.

I make that point to my students at the beginning of my classes.  but, for some of them, it just doesn’t sink in. I guess that shouldn't surprise me: people text while they're driving even as the casualties continue to mount.

I recently found an exercise on the Internet that illustrates the point in a straightforward, simple way. I’m going to distribute it to my students this year (with the author’s permission) and see if it helps. (For what it’s worth, it took me 34 seconds to complete the exercise without multitasking and 52 seconds to do it multitasking.)

ICYMI: Tweets of the Week (Aug. 24, 2014)

Steven Lubet is author of "Lawyers' Poker: 52 Lessons that Lawyers Can Learn from Card Players" ht @FacLoungeBlog http://t.co/kyaFclmuE5

— Stefan Padfield (@ProfPadfield) August 24, 2014

'The government is asking for the public's input about how narrowly to define a "closely held" corporation' ... http://t.co/dyxD74c2qt

— Brian JM Quinn (@bjmquinn) August 22, 2014

Is the American Dream still alive today? Our new #BrookingsEssay takes a look at the history of U.S. inequality: http://t.co/LW44Y4lGPS

— Strobe Talbott (@strobetalbott) August 20, 2014

Is "[m]uch of what investment bankers do ... socially worthless"? http://t.co/6a9O6MkH5m ht @FrankPasquale

— Stefan Padfield (@ProfPadfield) August 19, 2014

“millennials collectively favor companies that embrace the values of good citizenship” http://t.co/6UANthEZH9

— Frank Pasquale (@FrankPasquale) August 18, 2014

Crowdfunding and Gender

The SEC is in the process of crafting rules to facilitate crowdfunding of unregistered securities offerings.  There's been a lot of back and forth about the merits of this idea - Michael Dorff, for example, has argued that it's a sucker's game, because the only businesses that will require crowdfunding are those too toxic for angel investors to touch.  Meanwhile, Steve Bradford just posted about a study suggesting that the "crowd" is better at identifying winning business ideas than individual investors - even the professionals.

One idea that's been floated, however, is that crowdfunding will open doors for disadvantaged groups - like women.

Indiegogo, a crowdfunding website, recently boasted that women founders reach their target funding in much greater numbers than do women who seek startup capital through traditional means.  Women have had similar results on Kickstarter.

There's been a lot written recently about how women fare poorly in the tech world when they seek startup funding.  Women report navigating a lot of pretty toxic sexism from the mostly-male angel investors with whom they must negotiate.

I have my doubts about the viability of crowdfunding, but I'll be interested to see whether it can also level playing fields in unexpected ways.

Corporate Constitutional Themes Pt.2

I love a good debate and appreciate the opportunity (provided by Professor Bainbridge’s thoughtful post yesterday) to engage a bit more deeply on the thesis of Wednesday’s post suggesting an approach for how to incorporate Citizens United and Hobby Lobby into the survey BA/Corporations course. 

By way of recap and ruthless summary, Stephen Bainbridge wants nothing to do with these issues (or other constitutional law questions) in his course because of the:

1. Existing emphasis of public law over private law and resulting imbalance in law school curriculum;
2. False impression that constitutional law is the holy grail of law teaching and practice;
3. These cases present a hornet’s nest of controversial and divisive topics; and
4. Coverage constraints.  The menu options of what we can (should) teach is already more ambitious than time allows.

And to no surprise to anyone, anywhere:  Stephen Bainbridge is right on the money with all of these points.

As a survey course and one that almost every student in my law school (Georgia State) takes, I feel a responsibility to provide context for the subject matter that we teach and to do my best to “hook” students who didn’t come to my class with an interest in corporate law. 

First, hear me now when I say that corporate law matters.  It matters to the business owners who form and operate a firm.  It matters to the individuals and other businesses who interact with the firm as a supplier or customer or creditor or employee.  These first two points are significantly incorporated into the traditional BA syllabus.  Corporate law also matters to general members of society because corporations wield tremendous power in elections, in lobbying (regulatory capture anyone?), in shaping retirement savings, in religious and reproductive rights debates and setting other cultural norms around issues like corruption, sustainability, living wage, etc.   Multi-national corporations with ubiquitous brand recognition aren’t the only powerful actors.  The Hobby Lobby ruling tells us that those creatures governed largely by private law—the closely held corporation—also play a major role.  To teach corporate law in a vacuum that ignores this broader context is to teach nuclear physics without discussing the atom bomb and its consequences (if I can use hyperbole).  Should the broader context be the focus of the class? Absolutely not.  Can it be woven into context setting discussions or used as a way to elicit student participation?  In my class at least.

Second, not every student in BA enrolled out of pure self-interest; not everyone has a business background.  I consider my course to be a great equalizer in law school:  we take the health sciences majors, the B-schoolers, the political science and the anthropology kids and at the end of the semester everyone can explain basic financial concepts, the different menu options of firms, proxy fights, and even poison pills. We do this best when we can engage all of the students, which sometimes means helping students see why it might matter to them and how the subject connects with the things that they care about.  For some that will be the clever ways you can use private agreements to shape outcomes and hedge against risk, for others it will be seeing why corporate law matters even if you don’t care about corporations (see paragraph above).

My last point is that being an effective classroom teacher generally requires a sense of self-awareness about your comfort zone, your strengths, and your weaknesses (among other things). I have lots of colleagues, at GSU and other institutions (many of them BLPB editors), whom I admire, but if I tried to teach class the way that they did, I would fall short of the mark.  We teach to our own strengths and infuse classes with a sense of our own personality and passion.  I don’t think I have convinced anyone not previously inclined to incorporate these materials; and I wonder if Stephen has caused any course corrections with his thoughts.  We may have just reinforced the positions that you already held.  Either way, happy teaching to all readers who have started or are preparing to start the new semester and the new school year.

-Anne Tucker

Dweck on Mindset

This summer, on the recommendation of two colleagues, I read Mindset by Carol Dweck (Stanford Psychology Professor).

On Wednesday, in my first set of fall semester classes, I mentioned Dweck’s descriptions of “fixed mindset” and “growth mindset” because I thought it might be helpful for students to consider.    

Dweck says that those with a “fixed mindset” embrace a static view of intelligence, avoid challenges, get defensive in the face of obstacles and criticism, and are threatened by the success of others.  People with a “fixed mindset” view failure as a negative verdict on their worth as a person. (pg. 244-46).  

In contrast, Dweck says that those with a “growth mindset” believe that intelligence can be developed, embrace challenges, persist and learn in the face of obstacles and criticism, and are inspired by the success of others.  People with a “growth mindset” view failure as an opportunity to learn and improve. (pg. 244-46).

To be clear, I (and Dweck) realize that there are limits to personal growth – otherwise I would be at an NFL practice right now instead of blogging – but it is helpful to realize that we can generally improve substantially with effort.   

In the long run, Dweck finds that those with a “growth mindset” tend to outperform those with a “fixed mindset.” Dweck also finds evidence that people can change their dominant mindset over time. 

I see students with both types of mindsets.  You can spot the “fixed mindset” student easily – “I am not a C student!”  The “growth mindset” student is just as easy to identify – “I got a C on this exam. I’d like to meet with you about my test and talk about how I can improve.”

Students are not the only ones who can learn from Dweck’s work.  When faced with criticism, defensiveness feels natural to me, but I am, slowly, learning to unpack the criticism and look for lessons that could help me grow and improve.    

Is the Dodd-Frank Whistleblower Law Working?

Two news articles about the Dodd-Frank whistleblower law caught my eye this week. The first was an Op-Ed in the New York Times, in which Joe Nocera profiled a Mass Mutual whistleblower, who received a $400,000 reward—the upper level of the 10-30% of financial recoveries to which Dodd-Frank whistleblowers are entitled.

Regular readers of this blog may know that I met with the SEC, regulators and testified before Congress before the law went into effect about what I thought might be unintended effects on compliance programs. I have blogged about my thoughts on the law here and here. 

The Mass Mutual whistleblower, Bill Lloyd, complained internally and repeatedly to no avail. Like most whistleblowers, he went external because he felt that no one at his company took his reports seriously. He didn’t go to the SEC for the money. As I testified, people like him who try to do the right thing and try resolve issues within the company (if possible) deserve a reward if their claims have merit.

The second story had a different ending. The Wall Street Journal reported on the Second Circuit opinion supporting Siemens’ claim that Dodd-Frank’s anti-retaliation protection did not extend to its foreign whistleblowing employees. In that case, everything-- the alleged wrongful conduct, the internal reporting, and the termination--happened abroad. The employee did disclose to the SEC, but only after he was terminated, and therefore his retaliation claim relates to his internal reports. The court's reasoning  about the lack of extraterritorial jurisdiction was sound, but this ruling may be a victory for multinationals that may unintentionally undermine the efforts to bring certain claims to internal compliance officers. 

I proudly serve as a “management representative” on the Department of Labor’s Whistleblower Protection Advisory Committee with union members, outside counsel, corporate representatives, and academics. Although Dodd-Frank is not in our purview, two dozen other laws, including Sarbanes-Oxley are, and we regularly hear from other agencies including the SEC. I will be thinking of these two news articles at our next meeting in September.

I will also explore these issues and others as the moderator of the ABA 8^th Annual Section of Labor and Employment Law Conference, which will be held in Los Angeles, November 5-8, 2014. Panelists include Sean McKessey, Chief of the SEC’s Office of the Whistleblower, Mike Delikat of Orrick, Herrington & Sutcliffe LLP, and Jordan A. Thomas of Labaton Sucharow LLP.

The program is as follows: 

 Program Title: Whistleblower Rewards:  Trends and Emerging Issues in Qui Tam Actions and IRS, SEC & CFTC Whistleblower Rewards Claims

Description:     This session will explore the types of claims that qualify for rewards under the False Claims Act and the rewards programs administered by the Securities & Exchange Commission, Commodity Futures Trading Commission, and Internal Revenue Service, the quantity and quality of evidence needed by the DOJ, IRS, SEC, and CFTC to investigate a case successfully, and current trends in the investigation and prosecution of whistleblower disclosures. The panel also will address, from the viewpoint of in-house counsel, the interplay between these reward claims and corporate compliance and reporting obligations.

If you can think of questions or issues I should raise at either the DOL meeting in DC next month or with our panelists in November, please email me at [email protected] or leave your comments below.

Corporate Constitutional Themes in Survey Corporations/BA course

Fellow BLPB blogers have shared on and off line their coverage scope and strategies for Business Associations/Corporations.  In thinking about how to fit in big corporate constitutional questions into a syllabus that is already jam packed with topics, this 2013 article (Teaching Citizens United v. FEC in the Introductory Business Associations Course) by Michael Guttentag at Loyola Los Angeles, provides some great suggestions.  Written in a post-Citizens United and pre-Hobby Lobby era, I think his insights are broadly applicable about how corporate constitutional rights illustrate the "costs that may arise from differences between manager interests and shareholder interests, the costs that may arise from following a shareholder primacy norm, and the distinctive nature of the role of the transactional lawyer."  This short (8 pages) article is worth reading to identify some opportunities to discuss these important issues in a way that illustrates difficult concepts within your existing syllabus and hopefully keep students engaged throughout the semester.  

-Anne Tucker

Summer's Over: More On Teaching Business Organizations

At West Virginia University College of Law, we started classes yesterday, and I taught my first classes of the year: Energy Law in the morning and Business Organizations in the afternoon.  As I  do with a new year coming, I updated and revised my Business Organizations course for the fall.  Last year, I moved over to using Unicorporated Business Entities, of which I am a co-author.  I have my own corporations materials that I use to supplement the book so that I cover the full scope of agency, partnerships, LLCs, and corporations.  So far, it's worked  pretty well.  I spent several  years with  Klein, Ramseyer and Bainbridge's Business Associations, Cases and Materials on Agency, Partnerships, and Corporations (KRB), which is a great casebook, in its own right.

I did not make the change merely (or even mostly) because I am a co-author. I made the change because I like the structure we use in our book. I had been trying to work with KRB in my structure, but this book is designed to teach in with the organization I prefer, which is more topical than entity by entity.  I'll note that a little while ago, my co-blogger Steve Bradford asked, "Are We Teaching Business Associations Backwards?" Steve Bainbridge said, "No." He explained, 

I've tried that approach twice. Once, when I was very young, using photocopied materials I cut and pasted from casebook drafts the authors kindly allowed me to use. Once by jumping around Klein, Ramseyer, and Bainbridge. Both times it was a disaster. Students found it very confusing (and boy did my evaluations show it!). It actually took more time than the entity by entity approach, because I ended up having to do a lot of review (e.g., "you'll remember from 2 weeks ago when we discussed LLCs most recently that ...."). There actually isn't all that much topic overlap. Among corporations, for example, you've got the business judgment rule, derivative suits, "duty" of good faith, executive compensation, the special rules for close corporations, proxies, and so on, most of which either don't apply to LLCs etc.... or don't deserve duplicative treatment.

I have great respect for Prof. Bainbridge, and his writing has influenced me greatly, but (not surprisingly), I come out more closely aligned with my perception of Larry Ribstein on such issues, and with Jeff Lipshaw, who commented, 

I disagree about the lack of topic overlap, and suspect Larry Ribstein is raging about this in BA Heaven right now. . . .

This may reflect differences among student populations, but the traditional corporate law course, focusing primarily on public corporations, is less pertinent in many schools where students are unlikely to be doing that kind of work when they graduate. It's far more likely that they'll need to be able to explain to a client why the appropriate business form is a corporation or an LLC, and what the topical differences between them are.

I completely agree, and I would go another step to say that I find the duplication to be a valuable reinforcement mechanism that is worth (what I have seen as limited) extra time.  I am teaching a 4-credit course, though, which gives me time I never had in my prior institution's 3-credit version. 

One thing I am doing differently this year is my first assignment, which seeks to build on what I see as a need for students here. That is, I think many of them will need to be able to explain entity differences and help clients select the right option. 

I had my students fill out the form for a West Virginia Limited Liability Company (PDF here). I had a few goals.  First, I don't like to have students leave any of my classes without handling at least some of the forms or other documents they are likely to encounter in practice.  Second, I did it without any instruction this time (I have used similar forms later in the course) because I thought it would help me tee up an introduction to all this issues I want them thinking about with regard to entity choice.  (It did.) Finally, I like getting students to see the connection between the form and the statute. We can link though and see why the form requires certain issues, discuss waivable and nonwaivable provisions, and talk about things like entity purpose, freedom of contract, and the limits of limited liability.  

If nothing else, the change kept things fresh for me.  I welcome any comments and suggestions on any of this, and I wish everyone a great new academic year.  

More on Sports, Fashion, and Law

OK.  So, I am stretching a bit here.  But yoga may be considered a sport, athletic clothing is a kind of fashion, and securities fraud prohibitions and corporate director fiduciary duty involve law.  So, I stand by my blog title in the face of any criticism that may follow this post.

I do yoga four times a week when I am not traveling.  I also work out, sometimes on days when I am not doing yoga.  So, I have a fair number of pieces of yoga wear and other athletic clothing.  This means that I get regular mail and email solicitations from the firms that purvey these clothing items.

I recently received a catalog from one of my favorite athletic clothing brands, Sweaty Betty, which I discovered originally when I was teaching in Cambridge, England in one of our study abroad programs a few years ago.  I noticed, with some amusement, that the new catalog harps on the opacity of the firm's yoga bottoms or trousers (as the British like to call them).  The website does the same--"100% opaque" labels abound.  As an astute consumer and securities lawyer, I immediately jumped to the conclusion, whether right or wrong, that this yoga-bottoms advertising campaign is a reaction to the see-through yoga pants debacle of one of Sweaty Betty's competitors, Lululemon (another of my favorite brands).

What does business law have to do with this (apart from the many standard legal angles on the recall of products generally)?  As my securities regulation students from last spring well know (since it was the subject of part of their final exam), stockholders of Lululemon brought a securities fraud class action suit against Lululemon, after the recall of the see-through pants, based on alleged misrepresentations of material fact in public disclosures touting the high quality of its yoga pants.  Predictably (at least imho), the District Court dismissed the action back in April.  The court's opinion and order resulted in a few interesting online law firm commentaries with colorful titles (including posts from, e.g., Orrick and Weil).  The public fallout also includes (as most would guess) allegations of breaches of fiduciary duty and observations about insider trading and Rule 10b5-1 plans because of some well-timed trades by Lululemon's founder and then-CEO. 

As we think about the new semester (ours starts on Wednesday), the Sweaty Betty catalog reminded me to bring the Lululemon matter to the attention of our law faculty readers.  The facts and public reactions make for a nice case study of risk management in the context of securities regulation and fiduciary duty law.  A Stanford "Closer Look" piece, as well as many news reports, make the use of the case reasonably easy.  And for those of you who want to take a peak at my exam question, just ask . . . .